Opinion
Nos. 93 SSM 5, 94 SSM 6.
Decided April 6, 2004.
Appeal, in the first above-entitled proceeding, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 21, 2003, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in Monroe County). The Appellate Division, with two Justices dissenting, modified, on the law and in the exercise of discretion, and, as modified, confirmed a determination of the Board of Education of the Greece Central School District, which had found petitioner guilty of misconduct and terminated his employment. The modification consisted of partially granting the petition and reducing the penalty to suspension without pay and benefits for two years, retroactive to March 13, 2002.
Appeal, in the second above-entitled proceeding, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 21, 2003, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in Monroe County). The Appellate Division, with two Justices dissenting, modified, on the law and in the exercise of discretion, and, as modified, confirmed a determination of the Board of Education of the Greece Central School District, which had found petitioner guilty of misconduct and terminated his employment. The modification consisted of partially granting the petition and reducing the penalty to suspension without pay and benefits for two years, retroactive to March 13, 2002.
Matter of Scahill v. Greece Cent. School Dist., 1 AD3d 909, reversed.
Matter of Starr v. Greece Cent. School Dist., 1 AD3d 914, reversed.
Harris Beach LLP, Pittsford ( Edward A. Trevvett of counsel), for appellant. Chamberlain, D'Amanda, Oppenheimer Greenfield, Rochester ( Michael A. Sciortino of counsel), for respondents.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
In each case, the judgment of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed.
The District's terminations of petitioners, two long-time employees, were based on their misconduct in selling at least 14,000 untaxed cigarettes on school property and using a school vehicle to store the cigarettes. This misconduct, which occurred over several months, involved the misappropriation of work time and a violation of the District's trust and policy. Thus, the District did not abuse its discretion in terminating petitioners' employment as the penalty does not shock judicial conscience ( see Matter of Kelly v. Safir, 96 NY2d 32, 39-40; see also Matter of Pell v. Board of Educ., 34 NY2d 222, 233).
In each case: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), judgment, insofar as appealed from, reversed, etc.